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Psychmetrics Med. v. Allstate Ins. Co.

Supreme Court of New York, Second Department
Jun 23, 2023
79 Misc. 3d 129 (N.Y. App. Term 2023)

Opinion

2020-853 Q C

06-23-2023

PSYCHMETRICS MEDICAL, P.C., as Assignee of Kenney John, Respondent, v. ALLSTATE INSURANCE CO., Appellant.


ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion to vacate the dismissal of the action, which dismissal was based on plaintiff's failure to proceed at trial (see Uniform Rules for NY Civ Ct [ 22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.

"Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal ‘it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action’ " ( SZ Med., P.C. v Allstate Ins. Co. , 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co. , 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant's argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff's witness was out of the country at the time of the trial. Contrary to defendant's further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co. , 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant's remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.


Summaries of

Psychmetrics Med. v. Allstate Ins. Co.

Supreme Court of New York, Second Department
Jun 23, 2023
79 Misc. 3d 129 (N.Y. App. Term 2023)
Case details for

Psychmetrics Med. v. Allstate Ins. Co.

Case Details

Full title:Psychmetrics Medical, P.C., as Assignee of Kenney John, Respondent, v…

Court:Supreme Court of New York, Second Department

Date published: Jun 23, 2023

Citations

79 Misc. 3d 129 (N.Y. App. Term 2023)
2023 N.Y. Slip Op. 50690
190 N.Y.S.3d 806